US court overturns South Carolina abortion ban

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A southeastern court has struck down South Carolina’s so-called “fetal heartbeat” law, which bans abortions from six weeks into pregnancy.

The South Carolina Supreme Court ruled on Thursday, calling the ban an “unreasonable restriction” that “violates a woman’s constitutional right to privacy.”

The bill was narrowly defeated by a vote of three to two, with the majority siding with the plaintiffs: two South Carolina physicians, a women’s clinic in the city of Greenville, and the nonprofit organization Planned Parenthood.

“This is a monumental victory in the movement to protect legal abortion in the South,” the nonprofit’s South Atlantic branch said on Twitter. “We, as well as our partners, will continue our fight to block any law that allows politicians to interfere in people’s private healthcare decisions.”

Meanwhile, South Carolina Republican Governor Henry McMaster condemned the decision as judicial overreach, saying the ruling violated the will of voters in the largely red state.

“Our Supreme Court has found in our Constitution a right that was never intended by the people of South Carolina. With this ruling, the court has clearly exceeded its jurisdiction,” he wrote on Twitter.

South Carolina’s fetal heartbeat and abortion protection law was originally passed in February 2021, with Republicans hailing the law as a “massive victory” for those they consider “unborn” children.

“If this is upheld by the courts, we will have saved thousands of lives in South Carolina every year,” said Senate Majority Leader Shane Massey.

The law required patients seeking an abortion to undergo an ultrasound to detect what the law called a “fetal heartbeat.” If such activity was discovered, the abortion could not proceed except in cases of rape, incest or danger to the parent’s life.

But doctors and abortion rights advocates have challenged terms like “fetal heartbeat,” saying that the flickers captured in ultrasounds during the early weeks of pregnancy are not heartbeats, but rather electrical activity in cells that will eventually become heart tissue.

They also point out that the electrical pulses can be detected as early as six weeks, before many people realize they are pregnant. That rationale emerged Thursday in the decision of the South Carolina Supreme Court.

“Six weeks is simply not a reasonable time frame,” the court majority wrote in its opinion, citing the time it takes for a parent to realize they are pregnant and take action to bring about an abortion. It described the ban as an “unreasonable invasion of privacy”.

But the pronunciation was narrow. The majority opinion implied that the state could still impose restrictions on access to abortion, as long as it was protected by the state’s right to privacy.

“The state undoubtedly has the power to limit the right to privacy that protects women from state interference in its decision,” the ruling said.

South Carolina still has a separate 20-week abortion ban in effect, a state law that preceded the fetal heartbeat law.

The six-week ban initially faced a spate of legal challenges after it was signed into law in 2021 by Governor McMaster, who predicted that defending the legislation would be “an uphill battle”. A judge suspended the ban on the second day it took effect.

States like Georgia, Ohio and Iowa have also tried to introduce their own “fetal heart rate” laws, but they too are facing legal challenges. In November, Georgia’s Supreme Court voted to reinstate the “fetal heartbeat” law while considering a lower court ruling to overturn the ban, leading some advocates to call the issue “legal ping-pong.”

Republican support for such bans led attorneys general from 21 states — including Alabama, Arizona, Kansas, Montana and Texas — to file amicus briefs in March 2022 in support of the South Carolina law.

But the landscape for access to abortion in the US changed in June, when the US Supreme Court decided to overturn the groundbreaking precedent from 1973 Roe v Wade, effectively ending the constitutional right to access abortion at the federal level.

The U.S. Supreme Court decision — in a case called Dobbs v Jackson Women’s Health Organization — returned the issue of abortion rights to the state.

A few days after the Dobbs decision was made, on June 27 last year, South Carolina’s six-week ban went back into effect.

“Once Roe v Wade was overturned by the Supreme Court,” Attorney General Alan Wilson explained at the time, “there was no basis whatsoever left to block South Carolina’s Heartbeat Law.”

The South Atlantic chapter of Planned Parenthood filed a lawsuit the following month, arguing that the ban violated the state constitution. But South Carolina state attorneys argued that the right to privacy was intended to protect against illegal “search and seizure” and did not apply to abortion.

The South Carolina Supreme Court is believed to be the first court to make a final ruling on the constitutionality of abortion under state law in the months following the Dobbs decision.

As such, Thursday’s decision has drawn national attention, including from the administration of US President Joe Biden, a Democrat.

“We are encouraged by today’s South Carolina Supreme Court ruling on the state’s extreme and dangerous ban on abortion,” White House Press Secretary Karine Jean-Pierre wrote on Twitter. “Women should be able to make their own decisions about their bodies.”

But U.S. Senator Lindsey Graham, a Republican representing South Carolina, denounced the decision as “legal activism.” He has previously advocated for a nationwide 15-week abortion ban.

“It is hard for me to believe that the drafters of the South Carolina Constitution intended any provision to prevent elected officials from passing laws that protect the unborn,” he wrote Thursday.



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